Lead Opinion
The opinion of the court was delivered by
Recently, in State v. Bogguess,
This case raises the question of whether the Bogguess holding applies when the bench trial is conducted by a different judge than the one who made the pretrial suppression ruling. We conclude that having more than one judge involved in the proceedings does not alter the two-fold rationale of the decision in Bogguess. First, a defendant’s stipulation to facts for thе purpose of a bench trial precludes a defendant from asking the trial judge to ignore—in other words, suppress—evidence that a defendant has agreed can be admitted and considered. Second, because the case is tried solely on stipulated facts there will be no new evidence or arguments submitted that might change the ruling on the motion to suppress. Consequently, there is no legal or factual basis to revisit the suppression issue.
In this case, the defendant's objection to evidence was preserved, and the Court of Appeals erred in concluding it was not.
Factual and Procedural Background
Michael J. Kelly, Jr., appeals from his convictions of possession of cocaine, a severity level 4 drug offense, and possession of marijuana, a class A nonperson misdemeanor.
Before trial, Kelly filed a motion to suppress the drug evidence, arguing the drugs were seized during an unlawful traffic stop. A district judge conducted an evidentiary hearing and denied Kelly s motion.
After the district judge ruled, Kelly waived his right to a jury trial. Kelly s case then proceeded to a bench trial before a different district judge than the one who had denied Kelly’s motion to suppress. At the bench trial, the parties stipulated to the admission of a laboratoiy report and an affidavit of a detective who investigated the case. The detective recited details of the traffic officer’s arrest report, noting that Kelly had been stopped for fаiling to signal and had been arrested when he told the traffic officer his driver’s license was suspended. A search incident to arrest revealed substances in Kelly’s pockets that the traffic officer suspected were marijuana and cocaine. The laboratory report confirmed the suspicion. No evidence other than the laboratoiy report and the affidavit was admitted.
The trial judge stated that he had “review[ed] the content of the court file” but did not specifically mention the motion to suppress. Kelly did not mention the motion either and did not state any objections to the judge’s consideration of the evidence. The trial judge found the evidence sufficient to convict Kelly as charged.
Kelly appealed his convictions, and the Court of Appeals summarily affirmed under Supreme Court Rule 7.041 (2011 Kan. Ct. R. Annot. 59). The Court of Appeals concluded Kellys challenge was procedurally deficient under State v. King,
Kelly sought this court’s review of the Court of Appeals’ decision, arguing K.S.A. 60-404 only requires a “timely” objection and he timely objected by filing a motion to suppress. According to Kelly, a subsequent objection during trial was unnecessary because the issue of guilt was submitted to the trial judge on the basis of stipulated facts. In other words, there was no new evidence relating to the suppression issues and no opportunity for the trial judge to hear anything that would causе the pretrial ruling to change.
This court accepted review and has jurisdiction under K.S.A. 20-3018(b) and K.S.A. 22-3602(e).
Analysis
This court’s decision in King,
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so statedas to malee clear the specific ground of objection.”
Although the statute is worded in terms of an objection that is “timely interposed,” caselaw frequently uses the term “contemporaneous objection” to describe the preservation requirement. In King, using tire tеrm “contemporaneous-objection rule” to refer to K.S.A. 60-404, we explained the purpose of the rule, stating:
“[T]he objection requirement is a ‘salutary procedural tool’ that gives the district court ‘die opportunity to conduct the trial without using ... tainted evidence, and tiius avoid possible- reversal and a new trial.’ [This court has] . . . noted that the contemporaneous-objection requirement is ‘practically one of necessity if litigation is ever to be brought to an end.’ [Citation omitted.]” King,288 Kan. at 342 .
Other statutoiy provisions are also aimed at reducing the risk of presenting tainted evidence at trial. One of these provisions, K.S.A. 22-3216(3), is particularly relevant in this case. K.S.A. 22-3216(3) provides that a motion to suppress illegally seized evidence “shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of tire ground for the motion, but the court in its discretion nray entertain the motion at the trial.” In considering the motion to suppress illegally seized evidence, the “judge shall receive evidence on any issue of fact necessary to determine the motion.” K.S.A. 22-3216(2).
We have not viewed the requirements of K.S.A. 60-404 and K.S.A. 22-3216 as mutually exclusive. This court has generally treated motions to suppress like other preliminary or in limine orders and held that an objection must also be made at trial in order to satisfy the requirements of K.S.A. 60-404, even though a pretrial ruling has been obtainеd. E.g., State v. Houston,
In Houston, we explained the reasons for requiring an objection at trial, stating, in part:
“Among other advantages, this holding allows a court to rale on the evidence before trial, but after hearing how the evidence unfolds during trial, allows the court to be prepared—after timely trial objection—to reconsider its original ruling. Cf. Luce v. United States,469 U.S. 38 , 41-42,105 S. Ct. 460 ,83 L. Ed. 2d 443 (1984) (in limine ruling ‘is subject to change when the case unfolds’).” Houston,289 Kan. at 270 .
We have also explained that a pretrial ruling is not sufficient because the “materiality of the proposed evidence may not become actually apparent until other evidence has been admitted.” State v. Nunn,
As we explained in more detail in Bogguess, this court had not previously considered whether these same considerations apply when a case is tried on stipulated facts to a judge. We concluded they did not. In doing so, we explained that when a case is tried solely on stipulated facts, there is no basis for the judge to reconsider a pretrial ruling because the defendant has waived the right to dispute the evidence. Bogguess,
First, having more than one judge involved does not change the fact that a trial judge considering stipulated facts does not have the opportunity to reconsider a pretrial suppression ruling. A defendant’s stipulation precludes a defendant from asking the trial judge to suppress evidence because a defendant has agreed the evidence can be admitted and considered. Bogguess,
The second difference between Bogguess and this case is that Bogguess’ counsel specifically stated that Bogguess did not want to put the victim’s family through a trial but wanted to appeal. Because the same judge presided over all the proceedings in Bog-guess, the judge was aware of these statements. In contrast, in Kelly’s case, immediately after a district judge denied Kelly’s pretrial suppression motion, Kelly’s counsel advised the judge that she had told the prosecutor before the suppression hearing that “if the Motion to Suppress was not successful, that we intended to waive the jury trial.” Kelly’s counsel then asked the district judge to make a record of the waiver and to set the matter for bench trial. Counsel did not mention a plan to appeal.
The differences in the statements made by Bogguess’ counsel as opposed to those made by Kelly’s counsel are not significant to our analysis. It is not necessary to make an announcement during trial that an appeal is planned in order to preserve a right to appeal an issue. Moreover, while Kelly’s counsel could have announced this intent at trial, counsel still could not have asked the trial judge to suppress the evidence after Kelly had stipulated to its consideration. Further, there is no indication anyone was misled as to the purpose of the proceeding or the intent to preserve appellate rights.
Kelly, like Bogguess and innumerable other defendants proceeding to trial on stipulated facts, understood a conviction was almost certain. Yet, electing to have a bench trial preserved Kelly’s right to appeal the motion to suppress and any other legal issues without a jury trial. In contrast, had Kelly waived his right to a jury trial by entering a guilty or no contest plea, he would have waived his right to appeal most issues relating to his convictions, including the suppression issues. See K.S.A. 2011 Supp. 22-3602(a) (“No аppeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507.”). Because of the limitations on the right to appeal imposed by K.S.A. 2011 Supp. 22-3602(a), exercising a right to a bench trial on stipulated facts is commonly understood to be a mechanism to preserve legal issues for appeal in a situation where there are no factual defenses or, at least, no factual defenses that are likely to succeed. Given the foreseeability of conviction, a defendant makes the decision to forego the expense and rigors of a jury trial while preserving legal issues for appeal. Ironically, the Court of Appeals’ decision in this case exposes Kelly to additional costs and burdens by setting up the scenario where Kelly will be required to pursue a
The final difference between Bogguess and this case relates to statements made or not made at the time of sentencing. At Bog-guess’ sentencing hearing, his counsel stated, “I would just like to reiterate our objection to the inclusion of his statements in any of the Court’s decision making.” Bogguess,
Again, however, this procedural difference is not relevant to the reasons we hаve held the objection need not be restated at trial. Granted, we have considered posttrial motions timely in some circumstances. For example, in State v. Gordon,
In summary, there is no persuasive basis to reach a result in this case that differs frоm the result in Bogguess. Consequently, we hold that Kelly timely interposed an objection to the admission of evidence by filing a pretrial motion to suppress illegally obtained evidence, and in doing so he satisfied the requirements of K.S.A. 60-404 despite his failure to reiterate tire basis of his motion during the bench trial on stipulated facts. Consequently, we reverse the Court of Appeals’ decision to summarily affirm Kelly s convictions. We remand Kelly s appeal to the Court of Appeals for consideration of whether the district judge erred in denying his motion to suppress.
Reversed and remanded to the Court of Appeals with directions.
* ⅜ ⅜⅜
Dissenting Opinion
dissenting: I respectfully dissent. For more than 100 years Kansas appellate courts have required timely and specific objections to the admission of evidence. See Brumbaugh v. Schmidt,
K.S.A. 60-404 is a codification of this caselaw. State v. Freeman,
Because of the contemporaneous objection rule, for years our caselaw has also required that after denial of a pretrial motion to suppress, the moving party must still object to introduction of the evidence at trial to preserve die issue for appeal. State v. Houston,
Similarly, for years our court even has required that a party who has obtained an in limine order excluding evidence nevertheless must still object at trial to an opponent’s efforts to violate the order and introduce that prohibited evidence. Otherwise, the issue is not preserved for appeal. State v. Monda,
With this historic background of generally requiring strict compliance with the contemporaneоus objection rule, we proceed to Kelly’s stairstep progression: (1) filing a motion to suppress evidence; (2) denial of his motion by the court; (3) waiver of his right to jury trial; (4) participating in a bench trial 5 weeks later conducted by a different judge exclusively on Kelly’s stipulated facts; but (5) without Kelly’s renewed objection or any indication of his intent to preserve the suppression issue, e.g., for appeal.
Kansas has no caselaw directly on point. But the Fifth Circuit Court of Appeals does. In United States v. Garcia-Ruiz,
Among other things, the appellate court observed that Garcia-Ruiz did not reserve a right to appeal when he stipulated to the facts. Accordingly, his “decision to go to trial on stipulated facts can be viewed as waiver.”
The Garcia-Ruiz court observed that another panel of the 5th Circuit viewed the same question as “one of mootness.”
The Ramos-Flores court noted: “After those stipulated facts were read aloud in court, the Government and Ramos rested. Neither presented any other evidence; nor did they present any objections or reservations.” (Emphasis added.)
Similarly, in State v. Davis,
Georgia appellate courts follow the same rationale. In Sanders v. State,
The Kansas appellate decision closest to these scenarios—and where the contemporaneous objection rule was applied to stipulated facts—is State v. Synoracki,
During the State’s cross-examination of defendant, the “questions and answers reflected the basic information set forth in the stipulation.”
On appeal, defendant argued the cross-examination questions about his prior conviction violated K.S.A. 60-421 (disallows attack on defendant credibility through conviction until he or she introduces evidence of good character). This court rejected his argument for a number of reasons, several of which are of guidance here.
The Synoracki court began by addressing defendant’s argument that the stipulation had never been introduced into evidence. It held: “Whether the stipulation was admitted into evidence or needed to be admitted into evidence is not determinative.”
Accordingly, this court first found that “[t]he information contained in the stipulation was admitted intо evidence during the State’s cross-examination of the defendant and the defendant concedes that there was no contemporaneous objection to the State’s cross-examination.”
The Synoracki court ended its analysis by observing that “ ‘[t]the admission of evidence, even if erroneous, may not be raised as an issue on appeal unless there appears of record
In my view, Synoracki instructs that when a defendant’s motion in limine to exclude evidence is denied, and the same evidence is presented through a stipulation for the finder of fact to consider, the defendant must still object to the evidence when offered at trial. If not, the evidentiaiy issue is not preserved for appeal.
None of these cases, including Synoracki, addressed the need for a pretrial objection to be renewed at trial so die judge can be given a chance to reconsider the ruling—-whether, as the majority points out, because the evidence may be different at trial from the pretrial hearing’s, or because the evidence may be viewed differently by the judge in the context of all the trial evidence and argument. This omission suggests the courts’ primary concern is with preservation of die issue. See Freeman,
This caselaw inherently emphasizes tire defendant’s change to a diametrically opposite position. The defendant is no longer vigorously fighting to exclude the facts but now actively promoting the admission of those same facts into evidence—without objection or reservation. As the majority points out, by the defendant’s stipulation he or she “has agreed the evidence can be admitted and considered” and has “waived tire right to dispute” it. Slip op. at 6-7. This is in clear contrast to the defendant who, after denial of a motion to exclude evidence, simply renews his or her objection at trial—without agreeing, through stipulation, to those facts. See, e.g., Jones,
Under these circumstances, a stipulation unaccompanied by a timely objection can not only constitute waiver (Garcia-Ruiz,
Perez later filed a motion to dismiss, arguing the district court lacked jurisdiction because he had not been brought to trial within 60 days of the probable cause hearing as required by K.S.A. 59-29a06. In affirming the district court’s denial of his motion, the Court of Appeals held, inter alia-.
“That stipulation amounted to an acquiescence in the court’s judgment. Our Supreme Court has ruled that ‘[t]he respondent’s consent and stiрulation that he is a sexually violent predator amounts to his acquiescence in the judgment entered.’ In re Care and Treatment of Satthoff,272 Kan. 219 , 220,32 P.3d 1173 (2001). All of the grounds raised in Perez’ motion to dismiss made prior to his stipulation were swept away with his consent to the judgment.”2004 WL 1609123 , at *3.
Whatever the legal label, the failure to renew the objection effectively bars bringing the issue on appeal to this court. See Freeman,
This brings me to State v. Bogguess,
In this respect, our holding in Bogguess is entirely consistent with Mendoza,
Bogguess is also entirely consistent with Sanders v. State,
Language expressing such preservation intent by Kelly, and expressing a preservation understanding by the State and the court, is entirely lacking in Kelly’s case. Even Kelly concedes in his petition for review that it “does not appear from the record of the trial that anything was specifically said by trial defense counsel or included in the stipulation to object to the items that were the subject of the motion to suppress.” The most Kelly can point to is the trial judge’s statement that he had “review[ed] the content of the court file.” The judge certainly did not address the suppression motion denied 34 days earlier by a different judge. He simply looked at the facts in the two stipulated exhibits and found Kelly gu%-
The majority would disregard Kelly’s failures bеcause he was purportedly doing what, according to the majority, stipulating defendants generally intend to do. For example, it states that “exercising a right to a bench trial on stipulated facts is commonly understood to be a mechanism to preserve legal issues for appeal.” Slip op. at 8. It further speaks of the resultant “foreseeable[e]” conviction that causes the defendant to decide to “forego the expense and rigors of a jury trial while preserving legal issues for appeal” and that “the purpose of the procedure was understood.” Slip op. at 8. It further contends that “there is no indication anyone was misled as to the . . . intent to preserve appellate rights.” Slip op. at 7.
I have no quarrel with an acknowledgment of why defendants might, or even usually,
And as evidenced by State v. Houston,
The majority’s supposition about why Kelly was stipulating to the facts also contradicts one of the рrincipal purposes behind the contemporaneous objection rule: to provide the necessary specificity and thus certainty in evidentiaiy issues for the trial and appellate courts. See K.S.A. 60-404 (objection must be “so stated as to make clear the specific ground of objection”). Accordingly, we have rejected a party’s efforts to object to the admission of evidence on one basis to the trial court and argue a different basis on appeal. See Houston,
The majority correctly observes that Kelly was not required to announce his intention of preserving the issue for appeal while at trial because filing the notice of appeal of a conviction is done posttrial. But this misses the point. In Bogguess we determined the defendant met the contemporaneous objection rule only because he, the court, and the State all had given substitute indicatоrs that he wished to preserve an issue for appeal—not to suggest that his formal notification of appeal was required at that time.
Finally, in Bogguess we stated: “[W]hen the bench trial is conducted by the same judge who presided over the hearing on the motion to suppress, there is no reason to rehash the same arguments when no additional evidence has been presented.”
“[A] court retains the inherent power to review its own proceedings to correct errors or prevent injustices until a final judgment is entered. Connell v. State Highway Commission, 192 Kan. 371 , 376,388 P.2d 637 (1964); Weber v. Wilson,187 Kan. 214 , 215,356 P.2d 659 (1960). The court retains that power even when the same issue is presented to a different judge of the same court in the same case. Although factual issues may be particularly unsuitable for reconsideration, legal issues are more suitable. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478 (1981).” (Emphasis added.) City of Wichita v. Rice,20 Kan. App. 2d 370 , 376,889 P.2d 789 (1995).
See also State v. King,
Because I dissent from tire majority’s dilution of the contemporaneous objection rule as analyzed by this court in State v. Bog-guess, filed 8 months ago, I would affirm the Court of Appeals and the district court.